In re A.L.

Supreme Court of West Virginia

September 5, 2017

In re: A.L.

Mercer
County 15-JA-140-WS

MEMORANDUM DECISION

Petitioner
Mother T.L., by counsel Gerald R. Linkous, appeals the
Circuit Court of Mercer County's March 1, 2017, order
terminating her parental, custodial, and guardianship rights
to A.L.[1] The West Virginia Department of Health
and Human Resources ("DHHR"), by counsel S.L.
Evans, filed a response in support of the circuit court's
order and a supplemental appendix. The guardian ad litem
("guardian"), Elizabeth A. French, filed a response
on behalf of the child in support of the circuit court's
order. The intervening foster parent, C.B., by counsel, Kyle
G. Lusk, Matthew A. Bradford, and Brandon L. Gray, also filed
a brief in support of the circuit court's
order.[2] On appeal, petitioner argues that the
circuit court erred in refusing to grant her a
post-adjudicatory improvement period prior to terminating her
parental, custodial, and guardianship rights.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
August of 2015, petitioner's neighbor called the Child
Abuse Hotline alleging that she could hear a child being hit
at petitioner's residence. A Child Protective Services
("CPS") worker arrived at petitioner's
residence and observed welts and bruising on the child's
face. The CPS worker also observed dried mud on the
child's face, arms, and hands and observed that the
child's clothes were soiled and dirty.

In
September of 2015, the DHHR filed an abuse and neglect
petition against petitioner asserting physical abuse
inflicted upon the child. The petition asserted that the
owner of the residence where petitioner, the father, and the
child resided disclosed to the CPS worker that the child
frequently had unexplained injuries. The circuit court held a
preliminary hearing and found reasonable cause to believe
that the child was in imminent danger due to a nonaccidental
trauma that was inflicted upon the child while in
petitioner's custody. In October of 2015, the DHHR filed
an amended petition including information regarding prior
abuse and neglect proceedings against petitioner in Michigan
and South Dakota. The amended petition asserted that
petitioner, while residing in Michigan and South Dakota,
previously had her parental rights to six children
terminated, voluntarily and involuntarily. The petition also
asserted that the father of the child is a registered sex
offender.

In
January of 2016, the circuit court held an adjudicatory
hearing where petitioner stipulated to abusing the child
based upon excessive corporal punishment. The circuit court
accepted the stipulations and petitioner was adjudicated as
an abusing parent. At the hearing, petitioner moved for a
post-adjudicatory improvement period. The DHHR and the
guardian opposed any improvement period being granted to
petitioner. Shortly after the adjudicatory hearing, the DHHR
moved to terminate parental rights. The DHHR asserted that
due to aggravating circumstances, the DHHR was not required
to make reasonable efforts to preserve the family.

In
March of 2016, the circuit court held a dispositional hearing
in which it heard the testimony of the DHHR's caseworker
in this matter. After the caseworker's testimony, the
circuit court continued the hearing to allow for the
completion of a home study of a relative in another state who
wished to have the child placed with her. The child remained
in the foster home.

In
February of 2017, the circuit court resumed the dispositional
hearing. At the hearing, petitioner testified that while
living in Michigan, she had a prior improvement period
concerning the subject child for nine months. Petitioner
further testified that two months after the improvement
period was completed she moved to West Virginia, and
approximately six months after that, this abuse and neglect
petition was filed against her relating to the same child.
Petitioner also testified regarding her prior terminations
and admitted that the court in Michigan made a finding that
she had beaten one of her children so severely that the child
had multiple bruises and a broken arm.

Ultimately,
the circuit court denied petitioner's motion for a
post-adjudicatory improvement period and terminated her
parental, custodial, and guardianship rights in its March 1,
2017, order.[3] It is from the dispositional order
that petitioner appeals.

The Court has previously established the following standard
of review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

On
appeal, petitioner argues that the circuit court erred in not
granting her a post-adjudicatory improvement period prior to
terminating her parental rights. We disagree. In support of
her argument, petitioner claims that she successfully
completed an improvement period in another state prior to
moving to West Virginia. However, West Virginia Code §
49-4-610(2)(B) requires that the parent "demonstrates by
clear and convincing evidence, that the [parent] is likely to
fully participate in the improvement period . . . "
Further, we have often noted that the decision to grant or
deny an improvement period rests in the sound discretion of
the circuit court. See In re: M.M., 236 W.Va. 108,
778 S.E.2d 338 (2015) (stating that "West Virginia law
allows the circuit court discretion in deciding whether to
grant a parent an improvement period"); Syl. Pt. 6, in
part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589
(1996) (holding that "[i]t is within the court's
discretion to grant an improvement period within the
applicable statutory requirements").

Here,
petitioner failed to present any evidence to demonstrate to
the circuit court that she would be likely to fully
participate in a post-adjudicatory improvement period.
Although petitioner did receive an improvement period and
services in Michigan, they did little to remedy conditions of
abuse in the home. In 2009, the Probate Court for the County
of Mecosta in Michigan found that petitioner did not benefit
from the services offered. Between 2007 and 2011,
petitioner's parental rights to four of her children were
terminated involuntarily and parental rights to two of her
children were voluntarily relinquished. Petitioner allegedly
completed an improvement period involving this child in
another state prior to the petition being filed in the abuse
and neglect case at issue in this appeal, the circumstances
surrounding the improvement period were not similar to the
case at hand. Petitioner's prior improvement period
involved inappropriate housing, not corporal punishment.
Although petitioner testified in this matter that she would
be willing to comply with a post-adjudicatory improvement
period and make all ...

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